00:00:37.020You will have as much life to live as you allow yourself.
00:00:40.300The Madison. New series. Now streaming only on Paramount+.
00:00:44.880The Supreme Court spent last week hearing about Bill 21 in Quebec.
00:00:51.300This is an abhorrent law, one that tries to have the state decide what kind of religious garb people can wear in the public service.
00:00:59.360It's not a law that I support, or many outside of Quebec do, but the real issue before the Supreme Court was the Notwithstanding Clause.
00:01:07.680Section 33 of the Charter, that portion of the Charter of Rights and Freedoms that was part of the basis for the grand bargain that saw it adopted back in 1981,
00:01:17.920before the constitution was patriated in 1982. And yet since then, we've had a large section of
00:01:25.180Canada's Laurentian elite saying, hmm, the notwithstanding clause was a mistake, it has to go.
00:01:30.820And that was essentially the question before the Supreme Court during the Bill 21 case. Should the
00:01:36.940Supreme Court get rid of Section 33? Should they try and curtail it? Are there ways that the courts
00:01:42.700could intervene and say that the Constitution just isn't quite right.
00:01:47.140Hello and welcome to the Full Comment Podcast.
00:01:49.260My name is Brian Lilly, your host, and today we're going to delve into the subject with
00:01:53.200a man who knows very much about the Constitution and the Notwithstanding Clause.
00:01:57.740Bruce Pardy is a law professor at Queen's University.
00:02:00.800He's also affiliated with the Fraser Institute, McDonnell-Laurier, and other organizations
00:02:08.060And Bruce, before I come to you, I want to read a quote from you from one of your
00:02:12.640pieces for the Fraser Institute, you said the dispute over the notwithstanding clause reflects
00:02:17.700two bad choices, be ruled by courts or be ruled by legislatures. In Canada, neither institution
00:02:25.240tends to protect individual liberties, notwithstanding rights, the state is still supreme.
00:02:31.920Welcome. Thanks for having me, Brian. Good to see you. Would you agree that this case before
00:02:38.180the Supreme Court last week wasn't really about Bill 21, it was about the notwithstanding clause?
00:02:42.640Well, that's certainly the way the dialogue in the courtroom turned out. The federal government is an intervener in this case, but the focus was on the submissions that it was making, encouraging the court, as you described, to place limits on the province's ability to use the notwithstanding clause to do this kind of thing.
00:03:03.780So my sense is that you're not a huge fan of the notwithstanding clause, but you're also not a huge fan of judicial supremacy.
00:03:13.940I mean, in the contest between whether or not the notwithstanding clause should be honored as part of the Constitution, I'm squarely on the side of the people who say, look, that's what the text says.
00:03:27.300On the other hand, the Notwithstanding Clause is not a panacea either because it gives legislatures carte blanche to do whatever they want, notwithstanding rights.
00:03:36.900So it's a bit of a dilemma, and as the quote that you read alluded to, it's really a question of two bad choices.
00:03:45.660Do you give ultimate power to the courts, which has not turned out well, or do you give ultimate power to legislatures, which is the democratic way, but legislatures do a lot of bad things too?
00:03:54.200So I used to rail against the notwithstanding clause. I'd say, well, why should legislatures be able to abrogate my rights or anybody else's rights? And then you look and you say, so notwithstanding clause is section 33 of the charter.
00:04:13.280And then you look at Section 1, which essentially says that, well, the courts can overrule your rights if they deem by tests that they have invented to be justified in free and democratic society.
00:04:35.580But I'm not sure that that works, especially when you see how often our courts today ignore precedent, will overturn just about anything, and increasingly, in my view, make very political decisions.
00:04:49.540So I've reluctantly come around to, no, the notwithstanding clause has to be there because of the nature of the court today, which is not why it was put there, by the way, and we can get into that in a bit.
00:05:03.400But today, I would say the defense of it is the courts have lost all sense of their role in society and have decided that they are the supreme beings.
00:05:14.180It is the belief of the Supreme Court over a long period of time that its job is to decide social policy.
00:05:26.660And if you are in a country in which the courts believe that that is their role, then it would be a very good thing to have something like the notwithstanding clause to say, no, no, when legislatures are willing to say so, they are going to have the final word.
00:05:45.020And we are not going to be ruled by a star chamber of judges appointed to age 75 to rule over us.
00:05:52.100But that is what we've come to in this country.
00:07:06.840He took it to court and said, you are impacting my Section 7 charter rights to life, liberty, and security of the person.
00:07:15.040And he challenged the fact that he could not legally buy access to private health care.
00:07:23.700Now, that's one where the courts turned themselves into a pretzel to agree with Mr. Chaloui, but only using the Quebec Charter and not the Canadian Charter, because it was, you said, courts increasingly want to decide social policy.
00:07:40.560I similarly watched a group of parents who wanted to challenge Quebec's language law surrounding education, that if you don't have the right to go to an English school, meaning if you are not an Anglophone born and bred and raised in Canada, maybe you're an immigrant from somewhere else, but you only speak English, you must go to school in French.
00:08:08.340And even some French parents joined that charter challenge. And the courts turned themselves into pretzels again, saying, well, yes, this is a violation of the charter, but under Section 1, we're going to allow it for the greater good of society.
00:08:22.300that really is decided in both cases that is deciding social policy because they turned down
00:08:28.740a what they said was a violation of rights in terms of the parents and education and said it
00:08:35.360gets to stand for the greater good of Quebec and then the question of Chiloui they said well it's
00:08:41.720you know we're going to overturn it but only for Quebec and so Quebecers have rights that I don't
00:12:52.320And to the extent that rights were honored pre-charter, they were not honored because of something the Constitution or the law said.
00:13:02.620It was primarily because of the culture of the place, the culture of the courts, the attitude of restraint that the courts brought to it.
00:13:10.800There was nothing that limited in the law legislature's ability to legislate away your rights.
00:13:16.680And so culture in the legislative realm as well, legislatures who just didn't want to take the same kind of liberties away that they seem to want to in the present day.
00:13:30.680So this is largely due to culture as opposed to content.
00:13:34.140The fact of the matter is it was the charter that placed constitutional limits on the abilities of legislatures to legislate your rights away.
00:13:43.420Legislatures could do anything, essentially, more or less, in terms of overriding your property rights, your speech, your, you know, whatever rights you can think of that might have existed in the common law.
00:13:57.680Legislatures had the final call to decide that those would not apply anymore.
00:14:02.060And that is one thing that the charter claimed to change.
00:14:38.020But also claim that there are positive rights. And I don't want to get into too academic of an argument here, but the charter and the Canadian tradition has always been that government is there, these things are there to protect you from government overreach.
00:14:55.680And now it's, oh, no, you have a positive.
00:15:23.440And yet that seems to be where we're going.
00:15:25.140Well, it may be where we're going. We haven't actually arrived quite there yet, but we seem to be headed in that direction. And my take would be that the Charter began as what appears to be largely, in its most important sections anyway, largely a roster of negative rights, as you say, individual freedoms, situations in which the state is not allowed to interfere with you, and has slowly been, thanks to the court, Supreme Court especially,
00:15:50.720has been being transformed into a kind of progressive blueprint
00:15:55.400that justifies state action in certain circumstances.
00:15:58.380So, for example, the court reinterpreted the freedom of association,
00:16:06.400which is a negative right in Section 2D,
00:16:08.680to include a positive right to a legislative regime
00:16:12.240that allowed for collective bargaining and the right to strike.
00:17:29.560The court is now deciding what values,
00:17:34.380what contested values in Canadian society should prevail
00:17:38.120using the words of now-retired Justice Rosalie Abella.
00:17:41.800I can't remember the name of the case. It was back in the 90s, but they reinterpreted the right of association for a college professor here in Ontario, I believe it was the Ontario College of Art and Design, was rather upset that his union, that he was required to be a member of, kept donating to the NDP.
00:18:03.260And he said, well, the NDP doesn't represent me.
00:18:06.500You know, the union's supposed to be there to represent me in the workplace, not to represent who they take my money and give it to.
00:18:13.400And he said, you know, I have freedom of association, and you're associating me with the NDP, and I disagree with that.
00:18:18.380And the Supreme Court said, oh, no, that's not what freedom of association means.
00:18:22.260You don't have the right not to associate with people.
00:18:26.060I mean, it's one of many cases, and the court, in my view, has only gotten progressively worse over the years.
00:18:32.460Well, there are many, many of these cases, for sure. And they reveal an uncomfortable truth about the law, if you like. The law is not what it claims to be. The law is a mechanism, I like to say, for making political decisions in a way that looks like it has more legitimacy than it really should have.
00:18:54.520It provides bells and whistles and process and the pretense that decisions that are made in courts are made on some kind of logical, principled, controlled, limited, determined by precedent way.
00:19:07.740And if you study them carefully, a lot of them just don't hold up to that standard.
00:19:13.200So this is a system of making political decisions.
00:19:16.140And the more that the Supreme Court admits that they are making policy calls, the more that reality is becoming apparent.
00:19:24.000But it still leaves us with a problem, which is, who do you want to have the final call?
00:19:29.260A bunch of people who have been elected by the people or the mob sitting in legislatures, who often do things on very unprincipled basis.
00:19:42.880Or the courts, who are supposed to be doing things on a more principled basis, but often that doesn't hold up to scrutiny.
00:19:49.840So you've got these two bad choices, and both of those groups have shown that they will, in fact, place your rights aside when and if they think it's right to do so.
00:20:03.820So the charter rights that you have written down in the document does not reflect the reality of what you actually have.
00:20:11.660Those words are subject to interpretation, and those interpretations are not given by you.
00:20:16.480They're given by these other people who have power.
00:20:19.840OK, but if the Supreme Court hears a case where they agree that someone's charter rights have been violated, but violated in a way that they agree with, which means they will claim it's done in a free and justified in a free and democratic society, then they can abrogate those rights completely using Section 1 of the charter.
00:20:42.940There is no time limit on that abrogation. There is no appeal of that decision.
00:20:49.840Whereas Section 33, if Doug Ford decides tomorrow that Ginger should be shot in the street and that's fine, well, then, you know, people can vote him out at the next election.
00:21:43.760But the court, you know, is a wise chamber of wise people who are not providing their own decisions but looking into the law and finding the answer.
00:22:02.800And if you lose those essential myths and the system loses its legitimacy, as I think it's starting to do, then the question is, all right, so what do you got now?
00:22:11.680And this case on the Bill 21 situation is one of those cases where a little bit of legitimacy could be lost if the Supreme Court does what it has done before, which is to take the words of the document and say that it means something else.
00:22:31.700because the words of Section 33 are pretty clear.
00:22:34.680And the Supreme Court on a previous occasion essentially said
00:23:00.240And if people don't think that can happen, I just want to read out part of the Saskatchewan Federation of Labour decision from 2015.
00:23:10.900This is Justice Rogali Abella, who wrote for the majority and overturned decades of precedent at the Supreme Court level, not just lower court levels, but the Supreme Court, which had heard case after case on whether there was a constitutional charter protected right to strike.
00:23:26.520And they had always said no. And Justice Abella said in her decision, the right to strike is not merely derivative of collective bargaining. It is an indispensable component of that right. It seems to me to be the time to give this conclusion constitutional benediction.
00:23:44.980it's that last sentence it seems to me okay so that's a feeling and then a constitutional
00:23:51.120benediction she's saying she's giving it the blessing like she's the pope um that is not a
00:23:56.580legal argument no but it has become the way the supreme court often proceeds as in you know folks
00:24:05.320it's time we think we would prefer that this outcome you know be given its blessing and
00:24:11.140Therefore, that's what we're going to do.
00:24:12.520This is exactly the kind of loss of legitimacy that I'm describing.
00:24:17.300And it's interesting that Abella, in that situation, actually put it into words.
00:24:22.440They don't seem to be concerned that they are perceived to operate in this way.
00:24:29.960This is the actual way they are operating.
00:24:41.140And people still think that you can pass back-to-work legislation.
00:24:45.080They don't understand that when Doug Ford passed back-to-work legislation with the notwithstanding clause that was due to this, they haven't caught up.
00:24:54.300And my worry is that the Supreme Court is about to deliver a decision in this case that will have far-reaching political implications.
00:25:03.020We'll talk about that when we get back.
00:28:03.140But the arguments are really all about the notwithstanding clause
00:28:06.560because Quebec invoked it to protect the law from charter challenge.
00:28:10.720And so you've got the odd situation where you've got a bunch of interveners.
00:28:15.600There's more than 50 interveners in this case.
00:28:17.960And one of them is the Attorney General of Canada, which is arguing.
00:28:21.360I want to read from part of their factum. It says,
00:28:24.700The temporary character of the use of Section 33 confirms that it cannot be used to cause an irreparable impairment of the rights and freedoms guaranteed in Sections 2 or 7 to 15 of the Charter.
00:28:39.060Such use would amount to indirectly amending the Constitution.
00:28:42.780It follows that the courts must retain jurisdiction to review on a case-by-case basis whether the use of Section 33 violates this limit.
00:28:50.640um bruce i'd like to ask you uh is there anything in section 33 that says you cannot use it over and
00:29:00.860over again because my reading of it is it explicitly says you can use it over over again
00:29:05.760and here's how yes yes absolutely that's what the text suggests it expires after five years but you
00:29:13.580can renew it it doesn't say you can't you know why five years well i think that's because five years
00:29:19.880is close to the lifetime of a democratically elected government.
00:29:25.160And so if the people disapprove of your use of the clause,
00:29:29.240then you will get a consequence for that at the ballot box.
00:29:33.960But if people don't disapprove, then you'll be back in power and can do it again.
00:29:57.440And yet the Supreme Court, or sorry, the federal government through the Attorney General is asking the Supreme Court to effectively, in my view, and tell me if I'm wrong, modify the Charter and the Constitution, which, if you were to do it in a political fashion, would take seven provinces with 50% of the population.
00:30:18.140they want to do it with four of seven justices that is correct and i agree with the objection
00:30:25.640to that however let's just keep in mind the supreme court has done this over and over again
00:30:31.220already right so you can in what way well so for example um it took uh well we talked about section
00:30:40.1802d already the freedom of association it's done sort of the same thing with section 15 1
00:30:46.240of the Charter, done the same thing with, I think it's Section 121 of the original BNA Act,
00:30:53.740which provided for free trade between the provinces. The Supreme Court says,
00:30:57.200and actually, no, that's not what it means. You can point to lots of things over the course of a
00:31:02.440long period of time where the Supreme Court has used its interpretive power to change the meaning
00:31:07.760of the text of the Constitution. Now, let's keep in mind, on none of these occasions does the
00:31:13.340actual wording of the document change like there's no formal amendment in that sense what the
00:31:18.680supreme court has the power to do though and has done on numerous occasions is change the meaning
00:31:24.060of the words in the text right and so yes i think i think this is objectionable but i think we ought
00:31:31.960to be objecting to all of the instances in which the supreme court has done this over time
00:31:36.180so the i've just mentioned renewal is one thing that the um the court is asking them to deal with
00:31:45.440another is preemptively using this so using the notwithstanding clause before a court rules on
00:31:51.380anything um the argument is it was never intended to be this way well if it was never intended to
00:31:59.100be this way i would imagine that the very carefully worded language would say so i'm
00:32:05.360guessing you're going to tell me that the Supreme Court feels and believes that they can't, I guess
00:32:10.860for the Supreme Court, most importantly, feels that they can just amend that, just like you said
00:32:16.560they could amend the renewal portion. Well, listen, they can, let's just call a spade a spade.
00:32:24.200Supreme Court essentially can do anything it wants. And there's no place to appeal it. And
00:32:30.080There's no place to remove the judges.
00:32:31.600It's not a democratically elected body.
00:32:36.340Unless something really extreme happens that would cause the court to lose its legitimacy and cause a constitutional crisis, the court can do anything it wants.
00:32:45.840And so if it's merely a question of interpreting the words of the text in a way that some people might not approve, that's small potatoes.
00:32:55.160but this could cause a constitutional crisis i mean um you know you you look at the the fact that
00:33:04.740right now most polling would suggest the party quebecois would uh win the next quebec election
00:33:11.760now that's the province that central canada and the laurentian elite uh that the court is made up
00:33:16.800of really care about but alberta separatism could also be boosted by this ruling so we could have
00:33:22.900two provinces where if the court rules and says no you can't use it preemptively you can't renew
00:33:29.940it we're going to put guardrails and parameters around it yep well then like i i can see
00:33:37.220separatist sentiment in those two provinces and perhaps saskatchewan as well yes going through
00:33:42.480the roof well potentially yes i i'd like to kind of hope that it would but but these kinds of things
00:34:47.140I think of some of the crazy decisions over the last bunch of years, whether it's Bissonnette, which said the guy that committed the Quebec City mosque shooting, oh, it's cruel and unusual punishment to make him serve more than 25 years, so we're going to get rid of his consecutive sentences.
00:35:07.900Or you look at all the mandatory minimums that they struck down, not based on the cases in front of them, but on what they call reasonable hypotheticals.
00:35:17.160I would say that they're hypothetical, but not reasonable at all.
00:35:20.560The child pornography laws recently struck down over the judge inventing a new case saying, well, what if an 18-year-old is sent nude photos of a 17-year-old girlfriend and shares that with another 18-year-old?
00:35:34.440No prosecutor would, you know, charge them in that instance with child pornography, and yet they strike down laws meant to protect the most vulnerable based on, again, their feelings.
00:35:49.620I believe that was Justice Sheila Martin of Alberta that wrote that one.
00:39:16.860After the most recent federal election, I had opportunity to go and listen to a conservative strategist give his assessment of what happened.
00:39:25.860And, of course, he was very unhappy to have lost the election.
00:39:28.840but he was very happy with the numbers.
00:39:31.780And he said, the 41% of the popular vote that we got
00:39:35.380was the high watermark for conservative parties
00:41:20.080And yet liberals are very open about appointing people from their donor list, from their own party ranks, and then you've got these so-called systems where, oh no, it's nonpartisan, it's arm's length, and yet you look at all the rules and it's just designed to appoint like-minded people.
00:41:40.580And that includes all the way up to the fact that at the Supreme Court, you can't get on anymore unless you're fluently bilingual.
00:41:48.100Find me three competent judges who don't all share the same left-wing point of view in Alberta or Saskatchewan who are bilingual.
00:41:56.340I can show you plenty of great lawyers, plenty of great judges from those areas who are not bilingual, would make great jurists.
00:43:01.380I don't think we accept the extent to which a particular ideology has prevailed in this country so as to determine what is legitimate and what is not.
00:43:15.700To bring it back to Section 33, just so we can close out, you've said Section 1, the judge is deciding what is legitimate and what is not, is not great.
00:43:27.480Section 33 is not great, and that we need a third way.
00:43:32.860A third way would be an entirely different kind of constitution with a different architecture, which provides for a whole lot of different things.
00:43:43.100So, for example, just to make this very brief, there is a default position in our constitution.